Wrongfully Convicted: One Lawyer's Perspective

Editor's Note

Christine Mumma, Dwayne Dail's lawyer, spoke at last year's annual NIJ Conference. Mumma is the Executive Director of the
North Carolina Center on Actual Innocence and the Executive Director of the North Carolina Chief Justice's Criminal Justice
Study Commission. Here are excerpts from her July 23, 2008, remarks.

About three weeks after the rape, the [rape victim's] mother saw Dwayne drive by the apartment complex. Dwayne was looking
for his friends, but the mother thought he was looking up at their apartment complex at their window. She took down the license
plate and called the police and said, "I know who raped my daughter."

You can imagine that she was completely focused on who had done this to her 12-year-old daughter. She gave the police the
license plate number — and the police said that her daughter had to be the one to ID the attacker, as she (the mother) was
not there.

Three weeks after that — six weeks after the rape — the mother saw Dwayne in the parking lot with his friends. She walked
through the parking lot with her daughter and basically said, 'Is that him?' And it became "him" in the child's mind.

Misidentification is the leading factor in wrongful conviction across the country. It's present in 75 percent of the wrongful
convictions. Crossrace ID has its own very unique issues. On top of that, in Dwayne's case, you had 2:30 in the morning, a
young victim, woken in the middle of the night, very little lighting, a short-interval exposure, weapon focus and trauma.
You had all the factors that can cause a misidentification.

Of course, when you have the victim sit on the stand at the trial and point and say, "That's the man who raped me," that's
incredibly powerful evidence for a jury.

On Forensic Evidence

The only "forensic evidence" in Dwayne's case — and I use quotations very purposefully — was the microscopic comparison of
hair. Hair was taken from a throw rug in front of the victim's bed; the rug had been bought used three years prior. They vacuumed
it and obtained hairs: 40 African-American hairs and three Caucasian.

The letter Dwayne referred to from his attorney was before they had identified the three Caucasian hairs.

Two of the pubic hairs were determined not to match Dwayne, and they determined the other hair — a head hair — was microscopically
consistent and therefore could not exclude Dwayne. So that was the forensic evidence that was presented at trial.

On Preservation of Evidence

The rape kit was destroyed in 1994. The other evidence — the bed sheets and the child's nightgown — was put into a bag after
trial, taken back to the police station and put on the wrong shelf. Thanks to a mistake, it was put on a shelf with murder
evidence — only murder evidence is preserved — and an inventory was not done for 18 years.

We made countless phone calls and visits asking about that evidence and were constantly told there is no evidence in rape
cases, only murder cases. We never dreamed that someone had not actually gone in and checked the shelves to make sure. Then
one day, we called when they happened to be doing an inventory, and they had discovered the evidence in Dwayne's case.

On Selecting Dail's Case

The North Carolina Center gets about 1,200 inquiries a year — and that doesn't count all the mail, people asking for help
with sentencing or anything like that. That's 1,200 innocence claims a year that we have to go through. We run about a 95
percent rejection rate.

The things that highlighted Dwayne's case for us were the eyewitness identification — the weakness of that ID — and the fact
that he turned down a very, very attractive plea offer. He was dragged from the courtroom by his ankles claiming innocence.
He constantly claimed innocence throughout the entire time he was in prison. The weakness of the forensic evidence, the fact
that there was a rape kit taken, these were all things that go on our checklist to say this is a case that we need to pursue.

There are many cases, however, where I believe there is a credible claim of innocence and the evidence has absolutely been
destroyed … and there's nothing we can do. Proper collection, storage, preservation and notice of destruction should be the
top priority item not only for innocence claims, but for cold case resolution, for rape victims and murder victims and victims
of violent crimes. Forensic science in general is changing so much that we'll be able to solve those crimes tomorrow even
though we can't solve them today. So, preservation of evidence has to be a priority.

On DNA Evidence 18 Years Later

Semen was found on the inside seam of the child's nightgown; it excluded Dwayne and matched someone else in CODIS (Combined
DNA Index System), who was in prison, serving time as a habitual felon after more than 12 convictions for breaking and entering,
as well as convictions for secret peeping, forgery, larceny and charges for a separate incident of first-degree rape. Had
we not had that DNA hit, Dwayne's case probably would not have moved as quickly as it did.